Citation Nr: 18150331 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-45 000 DATE: November 15, 2018 ORDER The claim of entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. REMANDED The claim of entitlement to service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT The Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death, his death occurred almost 40 years after his separation from active duty service, and he was not a former prisoner of war (POW). CONCLUSION OF LAW The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1969 to June 1971, including service in the Republic of Vietnam. His awards and decorations include the Combat Infantryman Badge. He died in December 2013. The appellant is his surviving spouse. This appeal before the Board of Veterans’ Appeals (Board) arose from a February 2014 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, inter alia, denied entitlement to DIC benefits pursuant to 38 U.S.C. § 1318, and denied entitlement to service connection for the cause of the Veteran’s death. The appellant was notified of the RO’s decision in an April 2014 letter. The appellant disagreed with the RO’s decision and this appeal ensued. Although the RO indicated in an August 2014 rating decision that it was reopening the appellant’s claims that are the subject of this appeal, but was continuing to deny the claims on the merits, the Board notes that in March 2015, the appellant submitted a timely notice of disagreement (NOD) that was received within one year of the date of the April 2014 notice letter notifying her of the February 2014 denial of her claims. See 38 C.F.R. § 20.302. Turning to the appellant’s claim for DIC benefits pursuant to 38 U.S.C. § 1318, a surviving spouse may establish entitlement to DIC in the same manner as if a veteran’s death were service connected where it is shown that the veteran’s death was not the result of willful misconduct, and the veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). While the Veteran was in receipt of a total disability rating due to individual unemployability (TDIU) since April 18, 2009, he was not in receipt of a total disability rating during the 10 years preceding his death in December 30, 2013. Furthermore, the Veteran died more than 45 years after his separation from active duty service and he was not a former POW. Therefore, there is no legal basis for entitlement to DIC under 38 U.S.C. § 1318, and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND The Board’s review of the claims file reveals that further agency of original jurisdiction (action) on the remaining claim on appeal is warranted. The appellant contends that service connection for the cause of the Veteran’s death is warranted. At the time of his death, among other disabilities, the Veteran was service connected for posttraumatic stress disorder, peripheral neuropathy of the bilateral lower and upper extremities, and diabetes mellitus. To grant service connection for the cause of the Veteran’s death, it must be shown that a service-connected disability, or disability for which service connection is warranted, caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of other service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran’s death certificate lists cardio-respiratory arrest as the immediate cause of the Veteran’s death. This was determined to be due to pulmonary vascular congestion (PVC), which, in turn, was determined to be due to chronic obstructive pulmonary disease (COPD). Other significant factors contributing to the Veteran’s death were hypertension, cardiomegaly, obstructive sleep apnea, and tobacco smoking. The appellant has contended that the Veteran developed ischemic heart disease (IHD) as a result of his presumed exposure to herbicide agents during his Vietnam service. She has asserted that IHD caused or aggravated his COPD, leading to his PVC; and that, thus, IHD contributed materially or substantially to his death. While IHD constitutes a disability for which service connection may be awarded on a presumptive basis, as result of presumed exposure to herbicide agents during a veteran’s Vietnam service, the record does not reveal a clear diagnosis of IHD. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Medical evidence of record does reveal that the Veteran suffered from multiple cardiovascular disabilities. For instance, the evidence shows that he suffered from tachycardia for several years. In February 2009, he was noted to have atrioventricular nodal reentrant tachycardia, and was to be scheduled for transthoracic echocardiography for structural heart disease. He also was noted to have cardiomegaly for many years. Also, in July 2010, he was suspected of having right-sided heart failure, possibly associated with obstructive sleep apnea. Furthermore, while the Veteran was not service-connected for IHD, an April 2016 VA medical opinion listed IHD among the Veteran’s service-connected disabilities; thus, it is unclear whether the physician providing the opinion considered the Veteran to have an IHD diagnosis. Based on this evidence, is unclear to the Board whether the Veteran indeed suffered from IHD consistent with the presumptive service connection provisions of 38 C.F.R. § 3.309(e), and if so, whether such disability substantially or materially contributed to cause the Veteran’s death. Moreover, in the report of the April 2016 VA medical opinion, the examiner opined that the Veteran’s service-connected disabilities less likely as not caused or contributed to the Veteran’s death. In providing reasons for this opinion, the examiner noted that the Veteran’s PVC was likely due to pulmonary emboli, and that his COPD was due to smoking. The examiner noted that neither of these conditions would have been due to or made worse by any of the Veteran’s service-connected disabilities. The examiner, however, did not provide any reasons as to why the Veteran’s service-connected diabetes mellitus or peripheral neuropathy did not aggravate his PVC or COPD. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). Under these circumstances, the Board finds a remand is required to obtain a new VA medical opinion to address evidence of possible IHD and to obtain an adequate opinion addressing whether IHD, or the Veteran’s service-connected peripheral neuropathy or diabetes mellitus, caused or aggravated his PVC and/or COPD. Additionally, the Board notes that in a July 2014 statement, the appellant reported that the Veteran received private medical treatment at Froedtert Medical Center, in Wauwatosa, Wisconsin. While a few pages of treatment records from Froedtert Medical Center were provided by the appellant in July 2014, the records provided are missing pages and do not reflect specific treatment for PVC and COPD, as the appellant contended in the July 2014 statement. Hence, appropriate action to obtain outstanding private treatment records should be accomplished. 38 C. F.R. § 3.159(c). Therefore, prior to undertaking action responsive to the above, the AOJ should give the appellant another opportunity to provide additional information and/or evidence pertinent to the claim for service connection for the Veteran’s cause of death on appeal (particularly, about private (non-VA) treatment), explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In the letter, the AOJ should specifically request that the appellant furnish, or furnish appropriate authorization to obtain, a complete copy of the Veteran’s records of private treatment from Froedtert Medical Center (referenced above). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal. This matter is hereby REMANDED for the following action: 1. Furnish to the appellant and her representative a letter requesting that she provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that appellant furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records, to particularly include a complete copy of the Veteran’s treatment records from Froedtert Medical Center. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the matters within the one-year period). 2. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain a new VA medical opinion from an appropriate physician—preferably one with experience in evaluating cardio-pulmonary disabilities—to address the cause of the Veteran’s death. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. Following a review of all the relevant evidence of record, the physician should determine whether the evidence establishes that the Veteran suffered from ischemic heart disease, in accordance with the provisions of 38 C.F.R. § 3.309(e). The physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the any disability(ies) noted as having caused or contributed to the Veteran’s cause of death—PVC, COPD, hypertension, cardiomegaly, and/or obstructive sleep apnea—was caused OR aggravated (worsened beyond the natural progression) by any ischemic heart disease, or service-connected diabetes mellitus or peripheral neuropathy. The physician should also render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any IHD, or service-connected diabetes mellitus or peripheral neuropathy, otherwise caused, or contributed substantially or materially to cause, the Veteran’s death. In addressing the above, the physician must consider and discuss all pertinent medical evidence and lay assertions. The physician is advised that the Veteran was competent to report his symptoms and history, and the appellant is competent to report her observations; hence, all such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim for service connection for the cause of the Veteran’s death considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel